Com. v. Troop, L.

• Court: Superior Court of Pennsylvania
• Decided: June 30, 2016
• Docket: 2021 WDA 2015
• Status: Unpublished

Opinion

J-S48036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : LARRY TROOP, : : Appellant : No. 2021 WDA 2015

Appeal from the PCRA Order November 20, 2015 in the Court of Common Pleas of Erie County, Criminal Division, No(s): CP-25-MD-0001076-1988; CP-25-MD-0001235-1988

BEFORE: BOWES, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 30, 2016

Larry Troop (“Troop”) appeals, pro se, from the Order dismissing his

sixth Petition for post-conviction relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On November 18, 1988, a jury convicted Troop of three counts each of

robbery, conspiracy, theft by unlawful taking, and receiving stolen property.

On January 9, 1989, the trial court sentenced Troop to an aggregate term of

24 to 48 years in prison. This Court affirmed Troop’s judgment of sentence,

and our Supreme Court denied Troop’s Petition for allowance of appeal on

December 31, 1990. See Commonwealth v. Troop, 571 A.2d 1084 (Pa.

Super. 1990), appeal denied, 584 A.2d 317 (Pa. 1990).

Troop filed five previous PCRA Petitions, all of which were denied.

Troop filed the instant Petition on June 16, 2015. The PCRA court entered a J-S48036-16

Pa.R.Crim.P. 907 Notice of Intent to Dismiss. The PCRA court subsequently

dismissed the Petition.

We review an order dismissing a petition under the PCRA in the light

most favorable to the prevailing party at the PCRA level. Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “[A]n appellate court reviews the

PCRA court’s findings of fact to determine whether they are supported by the

record, and reviews its conclusions of law to determine whether they are

free from legal error.” Id. (citation omitted).

Under the PCRA, any PCRA petition “shall be filed within one year of

the date the judgment [of sentence] becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1). A judgment of sentence becomes final “at the conclusion of

direct review, including discretionary review in the Supreme Court of

Pennsylvania, or at the expiration time for seeking the review.” Id.

§ 9545(b)(3). The timeliness of a PCRA petition is a “jurisdictional requisite”

because “jurisdictional time limits go to a court’s right or competency to

adjudicate a controversy.” Commonwealth v. Robinson, 12 A.3d 477,

479 (Pa. Super. 2011).

Troop’s judgment of sentence became final on April 1, 1991, 90 days

after the Pennsylvania Supreme Court denied Troop’s Petition for Allowance

of Appeal, and the time for filing a Petition for writ of certiorari with the

United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3);

U.S.Sup.Ct.R. 13. Thus Troop had until April 1, 1992, to file a timely PCRA

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petition. The instant Petition, which was filed on June 16, 2015, is facially

untimely.

However, Pennsylvania courts may consider an untimely PCRA Petition

if the appellant can explicitly plead and prove one of three exceptions set

forth at Section 9545(b)(1)(i)-(iii). See Commonwealth v. Beasley, 741

A.2d 1258, 1261 (Pa. 1999). The exceptions to the timeliness requirements

are as follows: (i) the failure to raise the claim was the result of government

interference; (ii) the facts upon which the claim is predicated were unknown

and could not have been discovered with due diligence; or (iii) the right

asserted is a Constitutional right recognized by the Supreme Court of the

United States or the Supreme Court of Pennsylvania after the time period

provided in the section, and the court has held that it applies retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition invoking one of the

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” Id. § 9545(b)(2).

Troop invokes the newly recognized constitutional right exception.

Brief for Appellant at 7-8, 9. Troop argues that the United States Supreme

Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013),

applies retroactively and rendered his sentence illegal. Brief for Appellant at

8, 9-12. The Alleyne Court held that any fact that increases the mandatory

minimum sentence for a crime is an element that must be submitted to the

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jury and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155,

2163.

Here, Troop failed to file his PCRA Petition within 60 days of June 17,

2013, the date of the Alleyne decision. See Commonwealth v. Cintora,

69 A.3d 759, 763 (Pa. Super. 2013) (stating that to fulfill the 60-day

requirement, defendants need to file their Petition within 60 days from the

date of the court’s decision). Moreover, Alleyne is not retroactive to cases

where, as here, the judgment of sentence was final at the time of the

petitioner’s filing a petition invoking Alleyne. See Commonwealth v.

Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (stating that neither the

Pennsylvania Supreme Court nor the United States Supreme Court has held

that Alleyne is to be applied retroactively to cases in which the judgment of

the sentence has become final); see also Commonwealth v. Riggle, 119

A.3d 1058, 1067 (Pa. Super. 2015). Further, despite Troop’s argument that

Alleyne implicates the legality of his sentence, this Court does not have

jurisdiction to review the matter. Commonwealth v. Seskey, 86 A.3d 237,

241 (Pa. Super. 2014) (stating that “though not technically waivable, a

legality [of sentence] claim may nevertheless be lost should it be raised for

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the first time in an untimely PCRA Petition for which no time-bar exception

applies, thus depriving the court of jurisdiction over the claim”).1

Troop also argues that the sentencing guidelines controlling his

sentence were suspended at the time of his sentencing, and that the

sentencing court lacked the statutory authority to use the guidelines. Brief

for Appellant at 5, 13. However, Troop has failed to plead or prove an

exception to the timeliness requirement.2

Thus, the PCRA court properly dismissed Troop’s untimely PCRA

Petition.

Order affirmed.

1 We note that Troop claims that his sentence violates the 14th Amendment’s Due Process and Equal Protection Clauses, as well as the 8th Amendment. Brief for Appellant at 8. In doing so, however, Troop did not plead or prove one of the three listed exceptions. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). In support of his Alleyne argument, Troop also cites to Miller v. Alabama, 132 S. Ct. 2455 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016), which retroactively nullify mandatory life sentences without the possibility of parole for defendants under 18 years old at the time of commission of the crime. As noted above, Alleyne does not apply retroactively. To the extent that Troop invokes Miller and Montgomery under Section 9545(b)(1)(iii), we conclude that the cases do not apply as Troop was over the age of 18 years old at the time he committed the crimes. 2 To the extent that Troop claims that the ineffectiveness of his trial counsel invokes an exception to the timeliness requirement, we affirm “that allegations of ineffective counsel will not overcome the jurisdictional timeliness requirements of the PCRA.” Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/30/2016

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